REED v. BOWEN et al

Filing 49

Entry Discussing Plaintiff's Motion to Compel - Plaintiff Anthony Reed has filed a motion to compel asserting that the defendants are not complying with his discovery requests. More specifically, Mr. Reed states that the defendants failed to r espond to request numbers 10, 11, 14, 15, and 24 in his request for production of documents. He alleges that in response to his effort to resolve the discovery dispute pursuant to Federal Rules of Civil Procedure Rule 37, the defendants did not pr ovide the requested information and instead offered excuses. The underlying theme in Mr. Reed's motion to compel is that he is seeking information that the defendants contend they do not have. The motion to compel, [dkt. 42 ], is granted in part and denied in part. The plaintiff's motion for extension of time to file a reply to the defendants' response in opposition to the motion to compel, [dkt. 45 ], is denied as moot. (See Entry.) Signed by Judge William T. Lawrence on 8/10/2017. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ANTHONY WAYNE REED,
Plaintiff,
vs.
MARK J. BOWEN, JASON SLODERBECK,
BENSON, J. MILLER,
Defendants.

)
)
)
)
) Case No. 2:16-cv-0319-WTL-MJD
)
)
)
)
)

Entry Discussing Plaintiff’s Motion to Compel
Plaintiff Anthony Reed has filed a motion to compel asserting that the defendants are not
complying with his discovery requests. More specifically, Mr. Reed states that the defendants
failed to respond to request numbers 10, 11, 14, 15, and 24 in his request for production of
documents. He alleges that in response to his effort to resolve the discovery dispute pursuant to
Federal Rules of Civil Procedure Rule 37, the defendants did not provide the requested information
and instead offered excuses. Dkt. 42.
The defendants responded to the plaintiff’s motion to compel arguing that, to the extent
possible, they responded sufficiently to the petitioner’s discovery requests.
The parties are reminded that the overall purpose of discovery under the Federal Rules of
Civil Procedure is to require the disclosure of all relevant information so that the ultimate
resolution of disputed issues in any civil action may be based on a full and accurate understanding
of the true facts, and therefore embody a fair and just result. See United States v. Procter & Gamble
Co., 356 U.S. 677, 682 (1958); see also Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995)
(“wide access to relevant facts serves the integrity and fairness of the judicial process by promoting
the search for the truth”). Discovery in civil litigation is intended to be an essentially cooperative,

self-regulating process for which the parties would take responsibility, with little judicial
intervention required. See Edward D. Cavanagh, The August 1, 1983 Amendments to the Federal
Rules of Civil Procedure: A Critical Evaluation and a Proposal for More Effective Discovery
Through Local Rules, 30 Vill. L. Rev. 767, 775 & n.34 (1985).
The underlying theme in Mr. Reed’s motion to compel is that he is seeking information
that the defendants contend they do not have. The motion to compel, [dkt. 42], is granted in part
and denied in part consistent with the following:
1.

In request number 10, Mr. Reed requested that the defendants:

[Dkt. 43]. In his declaration in support of motion to compel, Mr. Reed clarifies with respect to
request number 10 that the defendants must have in their possession proof that they mailed his
documents to him at the Branchville Correctional Facility. He contends that U.S. Postal documents
were created (and exist) as a result of such mailing.
The defendants respond by stating they did mail documents to Mr. Reed at the Branchville
Correctional Facility but the envelope was not mailed by certified mail so proof of mailing
documents do not exist. [Dkt. 44-1]. The Court cannot compel the production of information that
does not exist. See Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 598
(E.D.Wis. 2004) (“A party need not produce documents or tangible things that are not in existence
or within its control. It is sufficient that the discovered party respond by saying that a document or
tangible thing is not in existence.”). It is common knowledge that the mailing of documents

through the mail does not always generate proof of such mailing. The defendants assert they mailed
these documents to Mr. Reed by U.S. mail only and no proof exists. This response is sufficient.
The motion to compel with respect to request for production number 10 is denied.
2. In request number 11, Mr. Reed requested that the defendants:

[Dkt. 43].
The defendants respond that no property inventory list was created with regard to the small
envelope of papers and other unspecified property because Mr. Reed was brought to the Hamilton
County Jail from the Branchville Correctional Facility and would not have been able to bring items
other than clothing with him. For these reasons, the defendants did not create a property inventory
list. However, with respect to his clothing, an inventory report was created and provided to Mr.
Reed. [Dkt. 44-1; 44-2, at pp. 4-6]. The defendants provided Mr. Reed with the documents in their
possession with respect to request number 11. The motion to compel with respect to request for
production number 11 is denied.
3.

In request number 14 and 15, Mr. Reed requested that the defendants:

[Dkt. 43]. Mr. Reed concedes that the defendants sent him a diagram of a corner cell and the next
attached cell, but that the response was not responsive to his request.
The defendants respond that the diagrams they provided included precise measurements
that would allow Mr. Reed to compute the total square footage and total square footage per inmate.
Mr. Reed specifically requested the calculations (square feet) of the upstairs and downstairs cells
in D Housing Unit. [Dkt. 44-1]. He also requested the “feet, per square inch, of space” each
prisoner has in a cell designed for two prisoners. While the defendants provided Mr. Reed a
diagram with the measurements of each cell, their response did not provide Mr. Reed with the rest
of the information he requested. As such, Mr. Reed’s motion to compel the information in request
numbers 14 and 15 is granted. The defendants shall provide the calculations of the total square
footage per cell and the total square footage per inmate.
4.

Finally, in request number 24, Mr. Reed requested that the defendants:

[Dkt. 43]. The defendants responded to this request by stating that such photographs did not exist
and the rules of discovery do not require the defendants to create them. [Dkt. 44-1]. Federal Rule
of Civil Procedure 34 provides that a party may “serve on any other party a request within the
scope of Rule 26(b) . . . to permit entry onto designated land or other property possessed or
controlled by the responding party, so that the requesting party may inspect, measure, survey,
photograph, test, or sample the property or any designated object or operation on it.” Fed. R. Civ.
P. 34(a)(2). Rule 37(a) allows a party to move for an order compelling discovery, including an
order compelling an answer or inspection. See Fed. R. Civ. P. 37(a)(3)(B).
Here, because Mr. Reed in an inmate, he is unable to inspect and photograph the
transportation wagon – something he would be able to do if he was not incarcerated. The Court
has broad discretion when deciding whether to compel discovery. See Patterson v. Avery Dennison
Corp., 281 F.3d 676, 681 (7th Cir. 2002). The Court will exercise its discretion with respect to
request number 24. Mr. Reed’s motion to compel request number 24 is granted. The defendants
shall provide Mr. Reed with the photographs Mr. Reed seeks in request number 24 that he
is unable to obtain on his own no later than September 11, 2017. The defendants may file a
motion seeking reimbursement from the plaintiff for reasonable costs associated with the
production of these photographs.

The plaintiff’s motion for extension of time to file a reply to the defendants’ response in
opposition to the motion to compel, [dkt. 45], is denied as moot.
IT IS SO ORDERED.
Date: 8/10/2017
_______________________________

Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

ANTHONY W. REED
930206
PUTNAMVILLE - CF
PUTNAMVILLE CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Donald B. Kite, Sr.
WUERTZ LAW OFFICE LLC
[e-mail]
Darren J. Murphy
HOWARD & ASSOCIATES
[e-mail]